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LIMe SERS
4. ,
CAUSE NO. 2005-79485
SHIRLEY ROBINSON, Individually as § IN THE DISTRICT COURT OF
Personal Representative of th state of a
RONALD ROBINSON, Decdased CHARLES BACARSSSE
District Clerk§
D
VS. MAY 2 1 20Q7HARRIS COUNTY, TEXAS
BONDEX INTERNATIONA
Ly INC TEP SE” 8S, TH JUDICIAL DISTRICT
Dep
CAUSE NO. 096-215428-05
RONALD ROBINSON AND SHIRLEY § IN THE DISTRICT COURT OF
ROBINSON §
VS. § TARRANT COUNTY, TEXAS
BONDEX INTERNATIONAL, INC., ET AL § 96TH JUDICIAL DISTRICT
DEFENDANTS’ JOINT MOTION/ORDER IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, the undersigned Defendants who respectfully request that upon the calling
of this case to trial, and before the voir dire examination of the jury, opening statements of
counsel to the jury, and the introduction of any evidence, that the Court instruct Plaintiffs,
counsel for Plaintiffs, and all of the Plaintiffs’ witnesses through such counsel, to refrain from
making any mention through interrogation, either directly or indirectly, at any stage of the trial of
these cases concerning any of the matters set forth in the attached order, without first
approaching the bench and obtaining a ruling of the Court outside the presence and hearing of all
prospective jurors and the jurors ultimately selected to try this case.
1 Defendants further request that.this Court order counsel for Plaintiffs to instruct
all witnesses called by Plaintiffs not to volunteer, disclose, state or mention to the jury any of the
BEAULITIGATION:816224.t
matters set forth in the attached order, unless questioned thereon after a prior ruling by this
Court.
2 Defendants also request that this Court order that the violation of any or all these
instructions would constitute harm to Defendant and would deprive them of a fair and impartial
trial, and instruct counsel for Plaintiffs that the failure to abide by such order of the Court may
constitute contempt and necessitate a mistrial. Dove v. State Employees Workers Compensation
Division, 857 S.W.2d 577, 588 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (Violations of
an order in limine are incurable if instructions to jury will not eliminate prejudice.)
3 The matters set forth in the attached order would be inadmissible for any purpose,
on proper objection, and they have no bearing on the issues in these cases or the rights of the
parties to this action. Permitting interrogation of witnesses, comments to jurors or prospective
jurors, or offers of evidence concerning these matters would prejudice the jury, and sustaining
objections to such questions, comments, or offers would not cure the prejudice, but reinforce itin
the minds of the jurors.
4 Defendants also move the Court that should any matters set forth above become
material, relevant or admissible, that Plaintiffs should bring such matters to the Court’s attention
outside the presence of the jury and should receive a favorable ruling thereon before mentioning
those items before the jury. Failure of the Court to grant this motion will allow opposing counsel
and their client a free hand to inject-such inadmissible and prejudicial matters as listed above
before the jury, and that even an objection, timely and properly sustained, would not prevent the
injury Defendants would suffer.
The specific actions and/or matters which Defendants request this Court include within
this Order in Limine are as follows:
BEAULITIGATION:81 6224.1
1. LIABILITY INSURANCE: Plaintiffs’ counsel mentioning or asking any questions,
directly or indirectly, about liability insurance since the issue of whether or not
Defendants are protected by liability insurance is immaterial to any issue before
the jury and would be prejudicial. Dennis vy. Hulse, 362 S.W.2d 308 (Tex. 1962);
Jacobini v. Hall, 719 8.W.2d 396, 401 (Tex. App. -- Fort Worth 1986, writ refd
n.x.e.); Ford v. Carpenter, 216 S.W.2d 558 (Tex. 1949).
AGREED GRANTED. DENIED WITHDRAWN
BANKRUPT/INSOLVENT DEFENDANTS: Plaintiffs’ counsel mentioning or offering
into evidence the fact that any Defendants or potential responsible third parties are
bankrupt. Such testimony would create a substantial danger of unduly prejudicing
Defendants and misleading the jury. Tex. R. Evid. 401, 402, 403.
AGREED —cRANTED DENIED WITHDRAWN
Costs PAID BY INSURANCE: Plaintiffs’ counsel mentioning or offering into
evidence that any portion of the costs, investigation, defense or judgment that may
be rendered herein will be paid by or was undertaken on behalf of any insurance
company.
AGREED _W GRANTED. DENIED WITHDRAWN
REFERENCES TO INSURANCE EMPLOYEES WHEN QUESTIONING WITNESSES:
Plaintiffs’ counsel using or referencing the terms “insurance adjuster,” “adjuster,”
“claims man,” or any other term that would lead the jury to believe that liability
insurance is or has been involved in this case for the reason that the same
improperly interjects insurance into the case. Atchinson, Topeka & Santa Fe Ry.
v, Acosta, 435 S.W.2d 539, 549 (Tex. Civ. App. -- Houston [1 Dist.] 1968, writ
refd n.r.e.).
AGREED A cranten DENIED WITHDRAWN.
5. “REGARDLESS OF WHO Pays”: Plaintiffs’ counsel interrogating the jury panel
as to whether they would answer an issue of damages in accordance with the
evidence, regardless of who pays the damages or when they will be paid, or
whether they will ever be paid, or any similar version of such inquiry for the
reason that the same improperly injects the implication of insurance into the suit,
or making any such reference in jury argument of similar vein. Hurley vy,
McMillan, 268 S.W.2d 229 (Tex. Civ. App. -- Galveston 1954, writ ref'd n.re.);
Griffith v. Casteel, 313 $.W.2d 149 (Tex. Civ. App. -- Houston 1958, writ ref'd
nr.e.).
AGREED GRANTED DENIED WITHDRAWN
BEAULITIGATION:8 {62 4.1
MEDICAL EXPENSES: Any attempt by Plaintiffs to introduce any evidence or
mention information related to the amount of Plaintiff's medical expenses related
to the injury made the basis of this lawsuit until such time as proper predicate has
been laid establishing that the medical expenses were reasonable and necessary,
are related to the injury made the basis of this lawsuit, and have been established
through affidavit or adequate means for the same to be admissible. Tex. Civil P.
Rem. Code §18.001. See also Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. —
Houston) 2002 and Rodriguez-Navarra v. Ridinger, S.W.3d 531 (Tex. App. - Fort
Worth) 2000.
AGREED A cranted DENIED WITHDRAWN.
COMPARISON OF WEALTH: During the liability phase of this trial, Plaintiffs’
counsel comparing or assessing the relative wealth of Plaintiff and Defendants,
Muro v. Houston Fire and Casualty Ins. Co., 329 $.W.2d 326 (Tex. Civ. App.—
San Antonio 1959, writ ref'd n.r.e.); El Paso Development Co. v. Ravel, 339
S.W.2d 360 (Tex. Civ. App—El Paso 1960, writ refd n.re.); Otto Vehle v,
Reserve law Officers Assn. v. Brenner, 590 S.W.2d 147, 151 (Tex. Civ. App—
San Antonio 1979, no writ); Mortgage Co. of America v. McCord, 466 S.W.2d
868 (Tex. Civ, App. 1971, writ ref'd n.r.e),
AGREED GRANTED. DENIED WITHDRAWN.
DEFENDANTS’ COMMITMENT OF RESOURCES: Plaintiffs’ counsel making any
references to the amount of money Defendants have spent to defend this case.
The Texas Constitution provides litigants with a right to a trial by jury and the
right to a fair and impartial trial. Tex. Const., art. 1, §15. Any such statement is
improper and unfairly prejudicial. Nickens v. State, 604 S.W.2d 101, 104 (Tex.
Crim. App. 1980),
AGREED AS GRANTED DENIED WITHDRAWN
9. Lost EarninGs: Plaintiffs’ counsel eliciting any testimony or other evidence in
support of Plaintiffs’ claims for lost earnings unless and until the Court, outside
the presence of the jury or jury panel, has determined that such testimony is
adequately supported by documentary evidence, is not speculative, and is timely
disclosed. River Oaks Townhomes Owners’ Ass'n, Inc. v. Bunt, 712 S.W.2d 529
(Tex.App.—Houston [14" Dist.} 1986, writ ref'd nre.).
AGREED _WGRANTED DENIED WITHDRAWN
10. PLAINTIFF’S LACK OF INSURANCE: Plaintiffs’ counsel mentioning or referencing
that Plaintiff does not have insurance to compensate Plaintiff for any injuries
and/or damages.
AGREED WcranTED DENIED WITHDRAWN.
BEAULITIGATION:81 6224.)
11 CONTINGENCY FEES AND EXPENSES: Plaintiffs’ counsel mentioning or
referencing in any way that any recovery by Plaintiffs in this matter will be shared
with his/her attorney, or that he/she has been required to incur expenses to bring
this suit.
AGREED W cran TED. DENIED WITHDRAWN
12, SiZE OF Law FIRMS: Plaintiffs’ counsel mentioning or referencing the number
of attorneys or legal assistants or the location of Defendants’ attorneys’ law firm.
AGREED _&% GRANTED. DENIED WITHDRAWN
13. OTHER CASES INVOLVING COUNSEL: Plaintiffs’ counsel mentioning or
commenting to the jury about any other case in which counsel for Defendants or
counsel for Plaintiffs may have been involved, except with expert witnesses.
AGREED A cRANTED DENIED WITHDRAWN
14, DEFENDANTS’ ATTORNEYS: Plaintiffs’ counsel mentioning that Defendants’
attorneys represent insurance companies in litigation or referencing when, why or
how Defendants employed their counsel to represent them in this suit.
AGREED _W GRANTED. DENIED WITHDRAWN
15. REFERENCE TO PLAINTIFF’S ATTORNEYS: Plaintiffs’ counsel mentioning or
referencing Plaintiffs’ lawyers or their law firms as “toxic tort prosecutors,”
“environmental lawyers,” or any other reference to Plaintiffs’ counsel suggesting
that they constitute enforcers of the law or identifying them with the better part of
human nature. This includes suggestions that Defendants’ counsel or Defendants
represent some contrary or evil interest which is against society’s best interests.
AGREED Y GRANTED. DENIED WITHDRAWN
16 SIDEBAR PORTIONS OF DEPOSITIONS: Plaintiffs’ counsel mentioning,
referencing, or attempting to read to the jury any nonrelevant exchanges between
counsel for Plaintiffs and-counsel for Defendants during depositions or in other
discovery responses.
AGREED VW cranten DENIED WITHDRAWN.
BEAULITIGATION:81 6224.1
17. QUESTIONS TO DEFENSE COUNSEL: Plaintiffs’ counsel posing any questions to
Defendants’ counsel in front of the jury.
AGREED_W GRANTED DENIED WITHDRAWN
18. LACK OF CORPORATE REPRESENTATIVE: Plaintiffs’ counsel mentioning or
referencing the presence or absence of a corporate representative on behalf of
Defendants. The Texas Rules of Civil Procedure specifically provide that a party
may prosecute or defend either in person or through an attorney. R. 7. The
presence or absence of a corporate representative has no tendency to make the
existence of any fact that is of consequence to the determination of the action
more or less probable. TEX. R. Evip. 401, 402, 403; MCCORMICK - EVIDENCE §
185 at 433-35 (2d ed. 1972).
AGREED A cranten DENIED WITHDRAWN
19. CORPORATE STATUS: Plaintiffs’ counsel mentioning or referencing in any
manner that, since Defendants are corporations, are without a heart and soul, or
make any other reference implying that Defendants as corporations have any less
rights under the law than a natural person. The fact that Defendants are not a
natural person is totally irrelevant to this suit and therefore inadmissible under
Rules 401 and 402 of the Texas Rules of Evidence. Furthermore, any reference to
the fact that Defendants are financially solvent entities, or any related inference, is
irrelevant, prejudicial, and would unduly confuse the jury and is therefore
inadmissible under Rule 403 of the Texas Rules of Evidence.
AGREED Y GRANTED. DENIED WITHDRAWN
20. EFFECT OF JURY’S ANSWERS: Plaintiffs’ counsel mentioning, referencing or
inferring anything which might tend to inform the jury of the effect of their
answers to the questions posed in the charge, including any comments to the
effect that if questions are not answered in a certain way that no recovery would
be had. Cooper v. Argonaut Ins. Co., 430 S.W.2d 35 (Tex. Civ. App. -- Dallas
1968, writ ref'd n.r.e.); Mayes v. City of Midland, 780 S.W.2d 903 (Tex. App. --
EI Paso 1989, writ denied).
AGREED GRANTED DENIED WITHDRAWN.
BEAULITIGATION:816224.1
21. TRADING PLACES: Plaintiffs’ counsel suggesting or asking the jurors to place
themselves in the position of Plaintiff because this is an improper appeal to
passions and sympathies. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex.
App. -Houston pa" Dist.] 1993, n.w.h.); Gulf Colorado & Santa Fe Railway
CO, v. Hampton, 358 S.W.2d 690 (Tex. Civ. App. -- Eastland 1962, writ ref'd
mre).
AGREED 4 GRANTED. DENIED WITHDRAWN
22, GOLDEN RULE: Plaintiffs’ counsel mentioning or referencing any statement that
calls upon the members of the panel or the jury to treat the Plaintiffs as they
would want to be treated. This violates the prohibition against evoking the
“Golden Rule.” This includes statements such as asking the jury to, “think about
the person you love most in your whole life...Do you understand that you would
be asking twelve people in a jury to set a value on your loved one’s life?”
AGREED _ UW GRANTED DENIED WITHDRAWN.
23, FAMILY OR FRIENDS ALLEGED EXPOSURE TO ASBESTOS OR THEIR ALLEGED
ILLNESSES: Plaintiffs’ counsel mentioning or referencing the alleged exposure of
family members or friends to asbestos-containing products or their alleged
illnesses or death as a result of such exposure because the same is irreparably
prejudicial and incurable by instruction. Such evidence is “substantially
outweighed” by the danger of unfair prejudice, confusion of the issues,
misleading the jury, and by considerations of delay, and not relevant to any issue
in this case. TEX. R. Evid. 401, 402, 403. In addition, such testimony allows into
evidence rank hearsay and expert medical opinions which must come from a
qualified expert witness.
AGREED_W GRANTED DENIED WITHDRAWN.
24, NON-PARTY WITNESSES: Exclusion of all non-party witnesses from the
courtroom except for expert witnesses. With regard to expert witnesses, courts
have held that it is appropriately within the discretion of the trial court to allow
such experts to be present in order to hear testimony that may be pertinent to their
own expert opinion. TEX. R. EviD. 614; Elbar, Inc. v. Claussen, 774 8.W.2d 45.
51-51 (Tex. App.-Dallas 1989, writ dism’d); Moore v. State, 493 S.W.2d 844,
845 (Tex, Crim.App. 1973).
AGREED_W GRANTED DENIED WITHDRAWN
BEAULITIGATION:816224.1
25 ABSENT WITNESSES: Plaintiffs’ counsel mentioning or making reference to the
failure to call any witness that is equally available to all parties or any witness that
is not available to or under the contro] of Defendants or tendering, referring to,
reading from, offering or exhibiting any ex parte statements or reports from any
witness who is not then and there present in Court to testify and subject to
examination by Defendants’ counsel. Highway Insurance Underwriters v. Lufkin,
215 S.W.2d 904, 914 (Tex. Civ. App. -- Beaumont 1948, writ ref’d n.t.e.); Texas
Power & Light Co. v. Walker, 559 8.W.2d 403, 406 (Tex. Civ. App. -- Texarkana
1977, no writ); Grogan v. Sanitos, 617 8.W.2d 312 (Tex. Civ. App. -- Tyler 1981,
no writ)...
AGREED A cranren DENIED WITHDRAWN,
26. PROBABLE TESTIMONY: Plaintiffs’ counsel mentioning or stating to the jury the
probable testimony of a witness who is absent, unavailable, or not called. Also,
mentioning any failure on the part of Defendants to call any expert witness
employed to express an opinion. Boyles v. Houston Lighting & Power Co., 464
S.W.2d 359 (Tex. 1971).
AGREED WV cranren DENIED ——__ WITHDRAWN.
27, UNDISCLOSED PRODUCTS AND WORK SITES: Plaintiffs’ counsel mentioning,
referencing or offering any evidence regarding exposure to Defendants’
contractors, products and work sites not divulged to Defendants in the Plaintiff's
and product identification witnesses’ depositions, work history sheets, or in
response to written discovery requests. In addition, Plaintiffs and co-workers
should be prevented from testifying about or mentioning work sites, contractors or
products not disclosed in their responses to discovery or depositions. This tactic
would unfairly surprise Defendants by interjecting fact situations not disclosed
during discovery. Sharp v. Broadway National Bank, 784 S.W.2d 669 (Tex.
1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d 243 (Tex. 1985); BF.
Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987).
AGREED A GRANTED DENIED WITHDRAWN
28, USE OF SUPERSEDED INTERROGATORY ANSWERS: Plaintiffs’ counsel making
any reference to or use of superseded interrogatory answers as direct evidence;
except to be used for impeachment.
AGREED _WGRANTED DENIED WITHDRAWN.
BEAULITIGATION:816224.
29, PRODUCTS USED BY CO-WORKER: Plaintiffs’ counse] making any attempt to
elicit or introduce testimony from an alleged co-worker of Plaintiff regarding
asbestos-containing products that he/she worked with and around wherein he/she
alleged he/she breathed respirable asbestos dust unless the testimony establishes
that Plaintiff was present and working with the alleged co-worker at the time of
the alleged exposure. Otherwise, the co-worker’s testimony amounts to nothing
more than speculation or conjecture regarding what “exposure” to respirable
asbestos Plaintiff might have had at a worksite that co-worker might have also
been employed with at a particular point in time. This testimony would be
unfairly prejudicial and is not probative. TEX.R.Evip. 403.
AGREED GRANTED. DENIED WITHDRAWN
30. Use oF ASBESTOS-CONTAINING PRODUCTS: Plaintiffs’ counsel mentioning,
implying or introducing evidence regarding any asbestos-containing products
manufactured or sold by Defendants that Plaintiff did not specifically identify
working with or around where he alleges he breathed respirable asbestos because
such would be irrelevant and would be calculated to confuse and prejudice the
jury. Tex. R. Evip. 401, 402, 403; See In Re Sears, Roebuck and Co.,123 S.W.3d
573, 578-79 (Tex. App.—Houston pa Dist.] 2003, no pet.)(holding that "it is not
enough...to guess what products may have injured a plaintiff. Nor is it enough
that a plaintiff was ‘at least potentially exposed‘ to a product...Instead, recovery is
available only from those whose products caused [plaintiff's} disease.”); see also
Gaulding v. Celotex Corp., 772 8.W.2d 66, 71 (Tex. 1989)(rejecting market-share
theory of liability in asbestos litigation).
AGREED GRANTED. DENIED WITHDRAWN.
31. ILLNESSES/DEATHS OF CO-WORKERS: Plaintiffs’ counsel eliciting testimony or
other evidence offered by any friend or co-worker of Plaintiff, wherein it is
attempted to show any health condition, death, or illness that the friend and/or co-
worker allegedly has and try to associate the health condition of the friend and/or
co-worker to Plaintiff. Such attempt to link unrelated and unproven health
conditions is entirely irrelevant to any issue to be tried in this case, and would
V
only result in unfgirly prejudicing the jury against Defendant.
AGREED — GRANTED. DENIED WITHDRAWN.
BEAULITIGATION:816224.1
32, REFERENCES TO ALLEGED FAILURE TO COMPLY WITH DISCOVERY REQUESTS:
Plaintiffs’ counsel making any reference to an alleged failure or refusal on the
part of Defendants to provide Plaintiffs with all required discovery, or any
suggestion that Defendants have not engaged in good faith discovery or have
withheld or failed to produce any document or other material to which Plaintiffs
claim to be entitled. Tex. R. Evip. 402.
AGREED YW cranted DENIED WITHDRAWN
33. UNDISCLOSED WITNESSES: Plaintiffs’ counsel mentioning or calling any witness,
expert or factual, whose identity, adeiwess and/or substance of testimony has not
been properly and timely disclosed in response to discovery requests directed to
the same or that has been disclosed in accordance with any applicable standing
Orders governing this litigation. Rainbo Baking Co. v. Stafford, 787 S.W.2d 41
(Tex. 1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d 243 (Tex.
1985); EF. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987).
AGREED GRANTED_|/ DENIED WITHDRAWN
34, PLAINTIFF’S WITNESSES NoT DeposeD: Plaintiffs’ counsel should refrain from
calling any witness to testify or referring to any witness statements for any
witness of Plaintiffs who was not deposed.
AGREED v GRANTED. DENIED WITHDRAWN,
35, COMMENTS ON CREDIBILITY OF A WITNESS: Any inquiry of a witness
concerning the credibility of the Plaintiffs, Defendants, or any other witness.
Opinions of witnesses as to the truthfulness or lack of truthfulness of another
witness are generally not admissible in evidence. Duckett v. State, 797 S.W. 2d
906, 915 (Tex. Crim. App. 1990), disapproved on other grounds, 849 S.W. 2d 906
(Tex. Crim. App. 1990); James v. Tex. Dept. of Human Services, 836 S.W. 2d
236, 244 (Tex. App.—Texarkana 1992, no writ); see, e.g., Streffv. State of Texas,
890 S.W. 2d 815 (Tex. App.—Eastland 1994, no writ). Further, the truthfulness
or untruthfulness, veracity or lack of veracity, credibility or lack of credibility,
honesty or dishonesty are improper inquiries for witnesses, including experts.
AGREED WV cranten DENIED WITHDRAWN,
BEAULITIGATION:816224,1 10
36 DISPARAGING OR PREJUDICIAL REFERENCES: Plaintiffs’ counsel referencing or
making disparaging remarks including use of the terms “murderer, 7, criminals,”
“frauds,” “cheats,” or any inference that Defendants manufactured or generated
evidence for the reason that said terms and allegations have been held to be
improper and prejudicial appeals to the passions and sympathies of the jury.
Circle Y of Yoakum y. Blevins, 826 S.W.2d 753 (Tex. App. - Texarkana 1992,
writ denied); Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex.
App. -- San Antonio 1990, writ denied); Bridges v. City of Richardson, 354
S.W.2d 366 (Tex. 1962).
AGREED GRANTED. DENIED WITHDRAWN
37. REFERENCES TO “ASBESTOS INDUSTRY” ETC.: Plaintiffs’ counsel referring to
any Defendant as an “asbestos company,” as part of the “asbestos industry,” or
the use of other like terms on the grounds such terms are vague, ambiguous and
could be misleading to a jury. The use of such terms also has no probative value
and will simply inflame the jury and could create a misleading impression. TEX.
R. Evip. 401, 402, 403; Texas Employers Ins. Assoc. v. Loesch, 538 S.W. 2d 435,
442 (Tex. Civ. App.—Waco 1976, writ ref'd n.r.e.).
AGREED _W GRANTED DENIED WITHDRAWN
38 IMPROPER COMPARISONS: Plaintiffs’ counsel referencing in any manner or
making reference to comparisons between the conduct of Defendants and other
corporate entities or products such as Ford Pintos and Firestone tires for the
reason that such references are improper and may not be cured by an instruction.
Plaintiffs, their counsel, and witnesses shall not make any reference to “Erin
Brockovich” or any insinuation that the work of Plaintiff's attorney resembles that
of Erin Brockovich. Lone Star Ford. Inc. v. Carter, 848 S.W.2d 850 (Tex. App. -
-Houston [14" Dist.] 1993, n.w.h.) (references to Ford Pintos in. closing argument
and referring to corporation as “killers” was reversible error); Circle ¥ of Yoakum
v. Blevins, 826 S.W.2d 753 (Tex. App. -- Texarkana 1992, writ denied),
AGREED oY GRANTED DENIED WITHDRAWN
39 CONCERT OF ACTION AMONG DEFENDANTS: Plaintiffs’ counsel referencing,
commenting or introducing evidence regarding an alleged concert of action
among the Defendants. The introduction of such evidence would be highly
improper and prejudicial. Tex. R. Evin. 401, 402, 403.
AGREED _W GRANTED DENIED WITHDRAWN
BEAULITIGATION:81 6224.1 11
40. “CONSPIRACY OF SILENCE:” Plaintiffs’ counsel referencing, commenting or
introducing any hearsay opinion testimony concerning any industry-wide
“conspiracy of silence” to fix medical literature, government regulations, etc., is
improper and inadmissible. Plaintiffs cannot lay any proper factual and
admissible evidentiary foundation as to the existence of a definable “industry”
and its membership at relevant times, of an agreement and conspiracy with well-
defined objectives between and among these Defendants, and of the existence of
agency relationships between and among Defendants on issues relevant to this
lawsuit.
AGREED Y GRANTED. DENIED WITHDRAWN
41, ImMPUTED KNOWLEDGE: Plaintiffs’ counsel attempting to elicit or submit any
evidence from another entity or a trade association/organization to which
Defendant was not a member in order to impute the knowledge of that trade
association/organization to a Defendant who was not a member for the purpose of
showing actual knowledge. TEX. R. Evip. 403.
AGREED _W GRANTED DENIED WITHDRAWN
42, REQUESTS FOR MATTERS CONTAINED IN DEFENDANTS’ FILE: Plaintiffs”
counsel making any demands or requests before the jury by Plaintiffs’ counsel for
matters found or believed to be contained in Defendants’ file including written
statements, pleadings, photographs, or other documents. Plaintiffs shall be
prohibited from demanding or requesting further or additional examination of the
premises, property or products which are the basis of this suit during the course of
the trial and in the presence of the jury.
AGREED O cranTED DENIED WITHDRAWN.
43 SETTLEMENTS OR NEGOTIATIONS: Plaintiffs’ counsel mentioning or asking any
questions regarding any settlement demands, offers or negotiations between the
parties in an effort to resolve this dispute. Tex. R. Evip. 403, 408; Hall v.
Birchfield, 718 S.W.2d 313 (Tex. App. -- Texarkana 1986), rev’d on other
grounds, 747 S.W.2d 361 (Tex. 1987).
AGREED _W GRANTED DENIED WITHDRAWN
BEAULITIGATION:816224.1 12
44. STIPULATIONS: Plaintiffs’ counsel mentioning or referencing by Plaintiffs’
counsel the refusal of either party to enter into a stipulation prior to trial.
AGREED vw GRANTED. DENIED WITHDRAWN.
45, APPEALS TO GENDER, RACIAL, ETHNIC OR AGE UNITY: Plaintiffs’ counsel
making any statement which could be considered a plea to gender, racial or age
unity because the same is irreparably prejudicial and incurable by instruction.
Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex. App. -- San
Antonio 1990, writ denied).
AGREED (SCRANTED DENIED WITHDRAWN
46. REFERENCES TO MEDIA ARTICLES OR REPORTS: Plaintiffs’ counsel mentioning,
referencing or introducing any evidence of media reports, including without
limitation and however characterized, newspaper and magazine articles,
televisions or radio broadcasts, and books or stories, generated by controversy
over asbestos because the same are inadmissible hearsay, notoriously unreliable,
and self-serving; excluding evidence that is admitted. Deramus y. Thornton, 333
S.W.2d 824, 831 (Tex. 19560); Texaco, Inc. v. Pennzoil, Inc., 729 S.W.2d 768,
841-42 (Tex. App. -- Houston [Ist Dist.] 1987, writ ref'd n.re.), cert. denied, 485
U.S. 994 (1988); TEx. R. Evib. 801, 802. Admission of media reports arising from
the publicity generated by the controversy or asbestos litigation would be
improper and irreparably prejudicial. Tex. R. Evip. 403. Elder v. State, 614 S.W.
136, 137 (Tex.Crim. App. 1981) (discussing admission of newspaper article
which constituted reversible error); Mayor of Philadelphia v. Education Equality
League, 415 U.S. 605, 619, n.19 (1974) (concluding that newspaper article are
inadmissible hearsay). Moreover, the purpose for introducing media reports is to
prejudice Defendants and to inflame the jury with patently inadmissible evidence;
and because the reports post-date Plaintiff's alleged exposure, such reports are
irrelevant. TEX. R. Evip. 401, 402, 403.
AGREED GRANTED DENIED _ wmmpravn
BEAULITIGATION:816224.1 13
47. INFLAMMATORY PHOTOGRAPHS AND VIDEOTAPES: Plaintiffs’ counsel
mentioning or informing the jury as to the content of any photographs or
videotapes, or presenting diseased or resected lung or any tissue whatsoever or
photographs/videotapes of same. The probative value, if any, of such an exhibit is
far outweighed by the prejudice, horror and sympathy-evoking effect such an
exhibit would have upon the jury. TEX.R.EviD. 403.
AGREED 4 GRANTED. DENIED WITHDRAWN
48 ABSTRACTS OF LITERATURE: Plaintiffs’ counsel attempt to introduce into
evidence any abstracts of literature (instead of the entire article/study) without
first establishing, outside the presence of the jury, the proper predicate to allow
for same. Abstracts of literature are hearsay by their very nature and no exception
exists to allow for their introduction into evidence; except for their use with
examination of expert witnesses.
AGREED A cranten DENIED WITHDRAWN.
49, DEFENDANTS’ PRIOR CONDUCT: Plaintiffs’ counsel mentioning, suggesting or
implying that Defendants may have been found guilty of any misconduct,
criminal liability, or civil liability in the past. The mere suggestion of any such
conduct would be incurably prejudicial, even with a timely objection and
favorable ruling. Air Shields v. Spears, 590 S.W.2d 574 (Tex. Civ. App. -- Waco
1979, writ ref'd n.r.e.).
AGREED _W/GRANTED DENIED WITHDRAWN.
50. Prior “Bap ACTS”: Plaintiffs’ counsel mentioning, referencing or introducing
evidence of any prior action and/or omission on the part of Defendants that is not
directly related to asbestos for the reason that the same is not admissible on the
issues of negligence, character or culpable conduct in connection with the event.
Tex. R. EviD. 608; Nix v. H.R. Management Co., 733 S.W.2d 573 (Tex. App. --
San Antonio 1987, writ ref'd n.r.e.).
AGREED GRANTED DENIED WITHDRAWN.
BEAULITIGATION:816224.1 14
51 PRIOR SUITS OR ONGOING Surts: Plaintiffs’ counsel mentioning or referencing
that Defendants may have been involved in any prior or ongoing suits or that a
party has never been involved in a prior suit; except as to expert witnesses and
corporate representatives. McClintock v. Travelers Insurance Company, 393
§.W.2d 421 (Tex. Civ. App. -- Amarillo 1965, writ ref'd nr.e). Additionally,
evidence of other prior or pending cases “is substantially outweighed” by the
danger of unfair prejudice, confusion of the issues, misleading the jury, and by
considerations of delay. TEX. R. Evip. 403
AGREED_W GRANTED DENIED WITHDRAWN.
52, SUBSEQUENT CLAIMS: Plaintiffs’ counsel mentioning or commenting to the jury
that there were claims subsequent to the date of the incident at issue for the reason
that evidence of the same is not relevant on the issue of negligence and would be
irreparably prejudicial. Further, evidence of subsequent claims is not relevant on
the issues of gross negligence and is inadmissible. Transportation Insurance Co.
v. Moriel, 879 S.W.2d 10 (1994)
AGREED _W” GRANTED DENIED WITHDRAWN
53. SUBSEQUENT REMEDIAL MEASURES: Plaintiffs’ counsel mentioning, referencing
or introducing evidence of any subsequent remedial measures or actions for the
reason that the same are not admissible o
conduct in connection with the event: PaaS, e issues of negligence or culpable
feasib lity ie-ratsedby-e-Befendente
Tex. R. Evip. 407(a); Penningtonv. Brock, 841 S.W.2d 127, 132 App. -- Houston
(14" Dist.] 1992, n.w.h.); Federal Pacific Electric Co. v. Woodend, 735 S.W.2d
887, 892 (Tex. "App -- Fort Worth 1987, no writ) Evidence of subsequent
measures is also not relevant on the issues of gross negligence Transportation
Insurance Co. v. Moriel, 879 W,2d 10 (1994)
AGREED GRANTEDJ. DENIED WITHDRAWN
54. OSHA AND EPA REGULATIONS OR REPORTS: Plaintiffs’ counsel méaao%iag,—
~refeserteing—er introducing evidence of Occupational Safety and Health
Administration (“OSHA”) and Environmental Protection Agency (“EPA”)
regulations on occupational asbestos exposure. The findings of those agencies are
neither conclusive nor even probative evidence of Plaintiff's individualized risk of
roms — ony red oacl py raccoeh
by HOLM,
developing an asbestos-related condition, Thps, they,are not ad
Evi. 402.
DENIED _ WIT drawn
BEAULITIGATION:816224.1 15
55. §.1125 (FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2003) OR ANY
OTHER ASBESTOS LEGISLATION: Plaintiffs’ counsel making any reference to
any proposed asbestos legislation, including but not limited to $1125. It is highly
prejudicial, irrelevant and is intended to appeal to the juries’ emotions.
AGREED GRANTED. DENIED WITHDRAWN.
56 EXPERT WITNESS INVESTIGATIONS: Plaintiffs’ counsel mentioning or
referencing any expert witness’ conversations with another expert or hearsay
conversations with another person. Birchfield v. Texarkana Mem. Hospital, 747
S.W.2d 361, 365 (Tex. 1987); Tex. R. EvID. 802; United States v, Grey Bear, 883
F.2d 1382 , 1292-93 (5" Cir. 1989), cert. denied, 493 U.S. 1047 (1990).
AGREED GRANTED. DENIED \/ WITHDRAWN.
57. Reports or ABSENT Doctors: Plaintiffs’ counsel eliciting any testimony by
medical experts regarding medical reports prepared by any doctor(s) not present
to testify unless both doctors made the same findings and conclusions; if the
report was created solely for litigation. Texas Employers Ins. V. Draper, 658
S.W. 2d 202, 207 (Tex. 1996); TEx. R. EVID. 803.
AGREED WA craw TED. DENIED WITHDRAWN.
58, EVIDENCE OF FEAR OF CANCER OR INCREASED RISK OF DISEASE: Plaintiffs’
counsel mentioning, referencing or introducing any evidence of fear of cancer or
increased risk of disease for the reasons that any “fear of cancer or increased risk”
evidence is not based on sound scientific principles and it is, therefore, irrelevant.
Tex. R. Evi. 401. Additionally, recovery for these damages is not allowed under
Florida law. See F.S.A, §§ 768.20, 774.206(2).
AGREED GRANTED. DENIED WITHDRAWN
59. Loss oF LirE ExpecraNcy: Plaintiffs’ counsel referencing or presenting any
evidence concerning the reduction of Plaintiff's life expectancy as an element of
damages.
AGREED GRANTED. DENIED J WITHDRAWN,
BEAULITIGATION:816224.1 16
60. EVIDENCE OF Dust CONTAINERS: Plaintiffs’ counsel referencing, mentioning or
introducing evidence in the form of dust-containing glass vials, or other glass
containing dust, which purportedly illustrate the concentration of airborne
asbestos (5,000,000 particles per cubic foot) deemed allowable for human
exposure under certain guidelines. Such evidence is irrelevant, lacks proper
foundation, and would necessitate undue consumption of time and create
substantial danger of undue prejudice, of confusing the issues, and of misleading
the jury. TEX. R. EviD. 401, 402, 403.
AGREED GRANTED. DENIED —— WITHDRAWN.
61 EXPERT OPINIONS: Plaintiffs’ counsel eliciting testimony from Plaintiff's expert
witnesses or offering or referring to opinions at trial they did not offer at their
depositions or were not disclosed in responses to discovery. Exxon Corp. v. West
Texas Gathering Co., 868 S.W.2d 299, 306 (Tex. 1993).
AGREED GRANTED DENIED _V WITHDRAWN
62. ADDRESSING EXPERTS: Plaintiffs’ counsel making any reference to Defendants’
experts through the use of any term other than their names. For example,
Defendants’ experts shall not be referred to as “Dr. Defense” or “Defense
Doctor,” or in any manner which impinges upon their character or is in any way
disrespectful of their standing within the medical and/or scientific community.
AGREED GRANTED. DENIED WITHDRAWN.
63. Case REPORTS: Plaintiffs’ counsel referencing, mentioning and introducing
evidence regarding case reports and case report compilations (for example, the
Australian Mesothelioma Register Report), based on such reports to prove
causation. Case reports by their very nature are unreliable indicators of causation.
TEX. R. EviD. 401, 402, 403.
AGREED GRANTED. JL DENIED ____ WITHDRAWN___
BEAULITIGATION:816224.1 17
64, INVOICES AS EVIDENCE OF “EXPOSURE”: Plaintiffs’ counsel referencing,
mentioning or introducing invoices referring to any Defendant (to the extent they
exist) to prove that respirable asbestos fibers from the products reflected on those
invoices was inhaled by Plaintiff during his occupational history. Introduction of
such invoices would create a substantial danger of misleading the jury, confusing
the issues and unduly prejudicing Defendants Tex. R. Evip. 401, 402, 403.
AGREED GRANTED. DENIED _V WITHDRAWN.
65. EVIDENCE OR EXHIBITS NOT INCLUDED ON PLAINTIFFS’ EXHIBIT LIST AND/OR
ADMITTED BY JUDGE DavipsoNn: Plaintiffs’ counsel mentioning, referencing or — aot a5
introducing any evidence, documents or exhibits that Plaintiff's counsel failed to fo literature
timely produce to Defendants and/or failed to list on Plaintiffs list of exhibits. -ANor-
Any reference to documents not previously produced would seriously hinder emows beth).
Defendants’ ability to defend itself. Such improper references could not be cured
by objections of counsel or instructions by the Court.
AGREED _W. GRANTED. DENIED WITHDRAWN,
66. DEFACING EXHIBITS: Plaintiffs’ counsel altering, modifying, adding to, or
writing on the exhibits, evidence, or demonstrative aids introduced or used by
Defendants.
AGREED GRANTED. DENIED WIT DRAWN
67 SUMNER SIMPSON PAPERS AND DOCUMENTS FROM OTHER COMPANIES:
Plaintiffs’ counsel mentioning, referencing or introducing any evidence,
documents or exhibits regar